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GS 3 > Security > Border area management > Security forces and Police
REFERENCE NEWS:
In a recent interview, Union Home Minister Amit Shah discussed the government's plan to repeal the Armed Forces (Special Powers) Act (AFSPA) in Jammu and Kashmir, aiming to transition law and order duties to the Jammu and Kashmir Police (JKP).
Amid these plans, the Army has launched a joint training program with the Jammu & Kashmir Police (JKP), a move that supports the strategy of reducing central forces and bolstering the JKP's lead role in the region's security.
Also, the Union Ministry of Home Affairs (MHA) recently extended the Armed Forces (Special Powers) Act (AFSPA) in parts of Nagaland and Arunachal Pradesh for another six months.
WHAT IS AFSPA?
In simple terms, AFSPA is a law which gives immense powers to armed forces to maintain rule of law in the “disturbed areas” declared by MHA.
AFSPA was introduced across troubled areas of the country in three separate acts, the Armed Forces Special Powers (Assam and Manipur) Act, 1958; The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983; and The Armed Forces (Jammu and Kashmir).
HISTORY:
Before Independence:
The AFSPA originated as a response to the Quit India Movement in 1942, when Viceroy Linlithgow enacted the Armed Forces (Special Powers) Ordinance, granting extensive powers to the military during internal disturbances. Following this, the Indian government issued similar ordinances in 1947 to address security challenges during partition in Bengal, Assam, East Bengal, and the United Provinces.
After Independence:
Parliament has enacted three different acts under AFSPA for different regions
Armed Forces Special Powers (Assam and Manipur) Act, 1958
AFSPA was first enacted to deal with the Naga insurgency in the Assam region.
It was later extended to all North-Eastern states.
Current Status:
The AFSPA is now fully applicable only in more than 30 districts and partially in more than 10 districts of four states in the Northeast namely Assam, Nagaland, Manipur and Arunachal Pradesh.
The AFSPA was completely withdrawn in Meghalaya in 2018, Tripura in 2015 and Mizoram in the 1980s.
Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983
In order to enable the central armed forces to operate in the state of Punjab and the union territory of Chandigarh which was battling the Khalistan movement in the 1980s.
As the Khalistan movement died downAFSPA was withdrawn in 1997.
Armed Forces (Jammu and Kashmir) Special Powers Act, 1990
Enacted in 1990 in order to tackle the unprecedented rise in militancy and insurgency in Jammu and Kashmir.
Current Status:
The AFSPA has been applicable to the erstwhile Jammu and Kashmir state since 1990. However, Leh and Kargil areas under the new UT of Ladakh were never declared as disturbed.
After the bifurcation of Jammu and Kashmir State, AFSPA remains in force throughout the UT of Jammu and Kashmir.
At present, the UT of Ladakh is not under AFSPA.
KEY PROVISIONS OF THE AFSPA ACT
Coverage:
“Armed forces” has been defined under AFSPA as military forces and the air forces operating as land forces, and includes all other central armed forces deployed in a state or UT.
Designating authority:
According to Section 3 of the Act, an entire state or a part of the state area can be designated as “disturbed” by the governor of the state, the administrator of a Union Territory, or the Centre.
Duration:
Once a region is declared ‘disturbed’ then it has to maintain the status quo for a minimum of three months.
The Act is usually extended every six months after a review by the State government.
Powers under the Act:
Section 4 of AFSPA accords special powers to armed forces, authorising security personnel to open fire, arrest people without warrants, enter and search without warrant. - all while having immunity from being prosecuted.
Section 6 of the Act lays down that no prosecution, suit or other legal proceeding shall be instituted against any person in respect of anything done or purported to be done in exercise of the powers conferred by AFSPA in absence of a previous sanction of the central government.
ARGUMENTS IN FAVOUR OF AFSPA:
For effective discharge of duty:
AFSPA encourages the armed forces to ensure the rule of law is reinstated in the disturbed areas of the country. With AFSPA, the forces will be able to undertake effective intelligence and counter-attack measures to tackle the insurgent inside the country.
Presence of threats to internal security:
The AFSPA is in force in areas where abnormality prevails and continues to pose a threat to India’s security. The law keeps a check on anti-national, secessionist and terrorist elements that can hamper the public order and incite violence and induce enmity.
Precarious neighbourhood:
India is surrounded by a tense neighbourhood. For eg: Pakistan is actively promoting terrorism against India, while Afghan is now under the radical Taliban. Hence, strong legislations like AFSPA and UAPA are essential to counter the threats they pose.
Success in Punjab:
AFSPA was crucial in rooting out the violent insurgency in Punjab and the militant activities in Mizoram.
Problem is with its abuse:
The law is not the problem, but it is the misuse of the law. Hence, rather than repealing the law as such, there should be strong mechanisms to prevent its misuse.
ARGUMENTS AGAINST AFSPA:
Unbridled power:
The law empowers security personnel, down to non-commissioned officers, to use force and shoot “even to the causing of death” if they are convinced that it is necessary to do so for the “maintenance of public order”. But these powers are provided without adequate safeguards for the public.
Misuse of powers:
The armed forces have been accused of conducting fake encounters and sexually exploiting the women in the disturbed areas Act.
Eg: Case of alleged custodial rape and killings of the Thangjam Manorama by the Assam rifles in 2004.
Violation of international accords:
AFSPA violates the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the Convention against Torture (India is a signatory, but it has not ratified it).
Undermines constitutional rights:
Some critics compare ASFPA with the Rowlatt act because like the Rowlatt Act, any suspicious person can be arrested on the basis of doubt in the ASFPA also.
Power of arbitrary arrest and detention goes against the fundamental right vested in Article 22, which provides safeguards on the preventive and punitive detentions.
AFSPA often results in the restriction of basic civil liberties, including the right to freedom of speech, assembly, and movement..
COMMITTEES WHICH REVIEWED THE ACT:
1) B P Jeevan Reddy Committee
In 2005, the killing of Thangjam Manorama by the Assam Rifles in Manipur triggered widespread protests and as a follow up, the government set up the Jeevan Reddy Commission to review AFSPA.
After a thorough research, the committee was firm that the Armed Forces (Special Powers) Act, 1958, should be repealed.
It suggested that the Unlawful Activities (Prevention) Act could be suitably amended to deal with terrorism.
2) Santosh Hegde Committee
In 2013, the Supreme Court was prompted to set up the Santosh Hegde committee following the petition filed by the Extra Judicial Execution Victim Families Association of Manipur asking it to look into six charges of unlawful encounter killings in Manipur.
The Santosh Hegde committee report said that five of the six encounters were “not genuine” and that AFSPA gave “sweeping powers” to men in uniform without granting citizens protection against its misuse.
Further, the committee was of the view that if greater power was given, then greater would be the restraint and stricter would be the mechanism to prevent its misuse or abuse, but this possibility was absent in the case of Manipur.
3) Justice JS Verma Committee:
In 2013, the justice JS Verma Committee, constituted to recommend amendments to Criminal Law, also recommended that the continuance of AFSPA in conflict areas needs to be revisited in order to extend legal protection to women in conflict areas.
It recommended:
Bringing sexual violence against women by members of the armed forces or uniformed personnel under the purview of ordinary criminal law
Taking special care to ensure the safety of women who are complainants and witnesses in cases of sexual assault by the armed forced
Setting up special commissioners for women’s safety and security in all areas of conflict in the country.
WAY FORWARD:
AFSPA should be amended to make it more comprehensive, with elaborate rules with respect to the manner of investigations of alleged human rights violations to reduce the possibility of it being abused.
The Army should view human rights violations as the biggest threat to its credibility and its stellar record in fighting insurgencies. It must re-establish the credibility by carrying out fresh investigations into all alleged cases of human rights violations.
Government should try to resolve the long running insurgency in North-eastern states through dialogue with insurgent groups.
Government should take urgent steps to create new avenues of growth through Industrialization and Infrastructural development to bring in balanced regional growth and development.
PRACTICE QUESTION:
Q. “Indefinite deployment of Armed forces in the name of restoring normalcy under AFSPA undermines the ideals of democracy”. Critically analyse AFSPA? (10 marks, 150 words)
